Citation Nr: 0521337
Decision Date: 08/08/05 Archive Date: 08/19/05
DOCKET NO. 02-00 630 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Boston, Massachusetts
THE ISSUES
1. Entitlement to a disability rating in excess of 30
percent for post-traumatic stress disorder (PTSD).
2. Entitlement to a total disability rating based on
individual unemployability due to service-connected
disability (TDIU).
REPRESENTATION
Appellant represented by: Richard A. LaPointe, Attorney
ATTORNEY FOR THE BOARD
Mary C. Suffoletta, Counsel
INTRODUCTION
The veteran served on active duty from February 1966 to April
1968.
These matters come to the Board of Veterans' Appeals (Board)
on appeal from a September 2001 decision of the RO that
denied a disability rating in excess of 30 percent for
service-connected PTSD, and denied entitlement to a TDIU.
The veteran filed a notice of disagreement (NOD) in September
2001, and the RO issued a statement of the case (SOC) in
January 2002. The veteran filed a substantive appeal later
that same month.
In November 2002, the Board undertook additional development
of the claims pursuant to the provisions of 38 C.F.R. § 19.9
(2002) and Board procedures then in effect. Later the
provision of 38 C.F.R. § 19.9 that purported to confer upon
the Board the jurisdiction to adjudicate claims on the basis
of evidence developed by the Board, but not reviewed by the
RO were held to be invalid. See Disabled American Veterans
(DAV) v. Secretary of Veterans Affairs (Secretary), 327 F.3d
1339 (Fed. Cir. 2003). Thus, in July 2003, the Board
remanded the matters to the RO for initial consideration of
the recently developed evidence and further action. In
April 2004, the RO issued a supplemental SOC (SSOC),
reflecting the continued denial of the claims for a
disability rating in excess of 30 percent for PTSD, and for a
TDIU. In a July 2004 decision, the Board denied each of the
veteran's claims on appeal.
The veteran appealed the July 2004 Board decision to the
United States Court of Appeals for Veterans Claims (Court).
In a March 2005 joint motion to the Court, counsel for both
parties requested that the July 2004 Board decision be
vacated and remanded for the Board to ensure strict
compliance with the instructions set forth in the Board's
July 2003 remand, and for the Board to fully articulate the
reasons and bases for its determinations. In a March 2005
order, the Court granted the parties' motion, and returned
the matters on appeal for a disability rating in excess of
30 percent for PTSD, and for a TDIU, to the Board for further
proceedings consistent with the joint motion.
For reasons expressed below, the matters on appeal are being
remanded to the RO via the Appeals Management Center (AMC) in
Washington, DC. VA will notify the veteran when further
action, on his part, is required.
REMAND
Unfortunately, the claims file reflects that further remand
of the claims for a disability rating in excess of 30 percent
for service-connected PTSD, and for a TDIU is warranted, even
though such will, regrettably, further delay an appellate
decision on the claims on appeal.
As indicated in the joint motion, a remand by the Board
confers upon the veteran, as a matter of law, the right to
compliance with the remand instructions, and imposes upon the
VA a concomitant duty to ensure compliance with the terms of
the remand. See Stegall v. West, 11 Vet. App. 268, 271
(1998).
In July 2003, the Board remanded these matters to the RO, in
part, to require the RO to satisfy the notification
provisions of the Veterans Claims Assistance Act of 2000
(VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002);
38 C.F.R. § 3.159 (2004). See also DAV v. Secretary,
327 F.3d. at 1339. Although the RO sent a July 2003 letter
to the veteran, it does not appear that the RO's July 2003
letter or its attachments provided notification to the
veteran as to the type of evidence necessary to substantiate
a claim for a TDIU. Hence, the Board finds that Stegall
requires that this matter be remanded to the RO for
compliance with the prior remand.
In regard to the claim for a disability rating in excess of
30 percent for PTSD, the Board notes that, while the
attachments to the July 2003 letter notified the veteran to
submit evidence that showed a worsening of his service-
connected disability, the paragraphs which followed
specifically addressed the criteria for establishing service
connection, rather than criteria for an increased rating. To
avoid any confusion and to ensure due process, this matter
also requires remand to the RO to satisfy the notification
provisions of the VCAA. Id.
The action identified herein is consistent with the duties to
notify and assist imposed by pertinent provisions of the
VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R.
§ 3.159 (2004). However, identification of specific action
requested on remand does not relieve the RO of the
responsibility to ensure full VCAA compliance. Hence, in
addition to the action requested above, the RO should also
undertake any other development and/or notification action
deemed warranted by the VCAA prior to adjudicating the claims
on appeal.
Accordingly, these matters are hereby REMANDED to the RO, via
the AMC, for the following action:
1. The RO should furnish to the veteran
and his attorney (a) letter(s) providing
notification of the VCAA and the duties
to notify and assist imposed thereby,
specifically as regards the claim for a
TDIU, and specifically as regards the
claim for increased rating for PTSD. The
letter(s) should include a summary of the
evidence currently of record that is
pertinent to the claims, and specific
notice as to the type of evidence
necessary to substantiate a claim for a
TDIU, and specific notice as to the type
of evidence necessary to substantiate a
claim for an increased rating for PTSD.
To ensure that the duty to notify the
veteran what evidence will be obtained by
whom is met, the RO's letter(s) should
include a request that he provide
sufficient information and, if necessary,
authorization to enable VA to obtain any
records of medical treatment and/or
evaluation for the veteran's service-
connected disabilities (PTSD, and
residuals of a neck wound) that are not
currently of record, and assurance that
the RO will attempt to obtain the
evidence if sufficient information and,
if necessary, authorization is provided.
The RO's letter(s) should also invite the
veteran to submit any evidence pertinent
to either claim that in his possession,
and explain the type of evidence that is
his ultimate responsibility to submit.
The RO's letter(s) should include clear
notice that the veteran has a full one-
year period for response (although VA may
decide the claims within the one-year
period).
2. If the veteran responds, the RO
should assist him in obtaining any
additional evidence identified by
following the current procedures set
forth in 38 C.F.R. § 3.159 (2004). All
records/responses received should be
associated with the claims file. If any
records sought are not obtained, the RO
should notify the veteran of the records
that were not obtained, explain the
efforts taken to obtain them, and
describe further action to be taken.
3. To help avoid future remand, the RO
must ensure that all requested actions
have been accomplished (to the extent
possible) in compliance with this REMAND.
If any action is not undertaken, or is
taken in a deficient manner, appropriate
corrective action should be undertaken.
See Stegall v. West, 11 Vet. App. 268
(1998).
4. After completing the requested action,
and any additional notification and/or
development deemed warranted, the RO
should readjudicate the claims on appeal
in light of all pertinent evidence and
legal authority.
5. If any benefit sought on appeal
remains denied, the RO must furnish to
the veteran and his attorney an
appropriate SSOC that includes clear
reasons and bases for all determinations,
and afford them the appropriate time
period for response before the claims
file is returned to the Board for further
appellate consideration.
The purpose of this REMAND is to afford due process; it is
not the Board's intent to imply whether the benefits
requested should be granted or denied. The veteran need take
no action until otherwise notified, but he may
furnish additional evidence and/or argument during the
appropriate time period. See Kutscherousky v. West, 12 Vet.
App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996);
Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski,
3 Vet. App. 129, 141 (1992).
This REMAND must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans Benefits Act of 2003, Pub. L. No.
108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified
at 38 U.S.C. §§ 5109B, 7112).
_________________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of the appeal. 38 C.F.R.
§ 20.1100(b) (2004).